Prosecutors are using felony murder charges, but the idea is controversial
Orleans Parish District Attorney Jason Williams is using a felony murder statute to prosecute four teenagers in a deadly carjacking. Critics say the law is too harsh given the ages of the defendants.
If there are no unforeseen delays or an intervention by the Louisiana Supreme Court, three of the four teenagers charged in the death of 73-year-old Linda Frickey, who was killed in March of last year, will go to trial next week.
John Honore, 18, Briniyah Baker, 16, and Mar’Qel Curtis,16, are all being charged as adults with second-degree murder, and face mandatory life in prison with the possibility of parole after 25 years if found guilty for their participation in the carjacking that resulted in Frickey’s death. (A fourth defendant, Lenyra Theophile, 17, was found incompetent to stand trial earlier this month.) All of them are being held on $1 million bonds.
The decision by District Attorney Jason Williams to charge the teens as adults was controversial, if not surprising. During his campaign for DA, Williams promised to keep all cases involving kids in juvenile court, and frequently cited research on youth brain development that indicates kids are more susceptible to peer pressure, more likely to engage in risky behavior, and less likely to consider the consequences of that behavior. By the time Frickey was killed, though, he had already gone back on that promise.
But there is another aspect to Williams’ decision that some advocates, attorneys, and legal scholars object to: The teens are being charged with second-degree murder despite the fact that prosecutors don’t allege that any of them actually intended to kill Frickey.
None of the defendants were armed with a gun, and two of the girls are not alleged to have any physical interaction with Frickey at all. Surveillance video shows that one girl, who prosecutors allege was Curtis, was only in the car for a matter of seconds and got out prior to it being driven away, which ultimately lead to Frickey’s death.
Generally, murder requires intent. But prosecutors are charging the teens using the felony murder rule, where under Louisiana law a person can still be charged with second-degree murder even if they have “no intent to kill” or even “to inflict great bodily harm” when a person is killed as they are engaged in any number of felonies. In this case, they allege the teens were in the midst of a simple robbery when Frickey was killed.
The concept of felony murder has long been the subject of criticism from legal scholars and progressive groups that Williams once aligned himself with, who say that it results in disproportionate prison sentences, and that it is more likely to impact women and people of color. Applying it to juveniles is even more objectionable, they argue, ignoring what science tells us about the ability of young people to think through the potential consequences of their behavior.
Since her death, Frickey’s family has been outspoken about wanting the teens to be prosecuted as adults and face the harshest penalties available.
“Our fight is for Linda,” Frickey’s sister-in-law said recently as they marked the first anniversary of her death. “We want justice for our family members, but it’s not just Linda. We want this for all elderly people. For all the victims of this juvenile crime. It’s like it’s a trend.”
Williams defended his decision, arguing that the juvenile system, where the harshest penalty would be incarceration until their twenty-first birthdays, was insufficient.
“I know that there are some in this community who will absolutely say that I am wrong for charging these four young people as adults,” Williams said after the kids were indicted. “I say it was wrong of them to prey on and kill one of our elders…It was wrong to ignore her cries for mercy, which are embedded in the neighbors’ minds and hearts and ears who were out there at that crime scene. It was wrong to take her life.”
Dane Ciolino, a law professor at Loyola, also defended the DA’s decision, calling it “a classic case of felony murder.”
“It’s clear that these kids had no specific intent to kill her, but they were certainly reckless as to her death,” Ciolino told The Lens. “You could ignore that a homicide happened. But why would you do that?”
But for some, Williams’ decision to not only charge the juveniles as adults, but to seek the harshest possible penalties in a case without intent seems to be an instance in which the political realities of public outrage over a high-profile case have taken precedence over a more measured and just response.
Flozell Daniels Jr., the president and CEO of Foundation for Louisiana, served as co-chair of the DA’s transition team. Several years ago, his own son was murdered, and he said he understands the pain Frickey’s family is going through.
But he expressed disappointment that the DA, despite his campaign rhetoric, was reverting to “this idea that what works to keep us safe is to find young folks who do terrible things, and lock them up the rest of their lives. We’ve tried that in Louisiana.”
“One doesn’t have to be a criminologist to see that it was really a very dumb, stupid idea gone really bad,” he said. “ And it doesn’t save the loss of life. But it does have to attenuate the charging decision. It makes you wonder, is the charging decision based on the actual crime? Or is it based on political outcry?”
The concept of felony murder in general has long been criticized by legal scholars who have argued that intent should be a necessary element for someone to be convicted for the crime of murder. And while it is still utilized in most states, other countries around the world — including England, Ireland, and Canada — have done away with the felony-murder altogether.
The doctrine is even more controversial when it comes to juveniles.
The United States Supreme Court has increasingly found that juveniles should already be presumed to be less culpable than adults who commit crimes due to their brain development. And in 2010, in a decision that found life without parole sentences for juveniles who are accused of anything aside from homicide, the Court held that youth who commit felony murder have “a twice diminished moral culpability” when compared to an adult murderer, attributable to both their young age and their lack of intent.
“It seems particularly ill fitting when we think about kids, because the idea behind felony murder is that when you choose to participate in something other than a murder, some other felony, like an armed robbery, or perhaps carjacking, you are presumed to anticipate the potential deadly consequences that might occur from that conduct,” Marsha Levick, chief legal officer with the Juvenile Law Center, told The Lens. “The thing that we know about young people is that they are not particularly good in their teenage years and during their adolescence at looking down the road and at making decisions based on a thoughtful understanding of the consequences and risks involved — the sort of cost benefit analysis that we expect adults to make.”
In a report, the organization Fair and Just Prosecution, which Williams has been affiliated with, argues that felony murder laws applied to juveniles tend to result “in lengthy sentences that fail to account for the significant differences in neurobiology, psychology, and maturity between young people and adults.”
They also cite data that indicates felony murder is disproportionately utilized to prosecute Black people and women, which they attribute to implicit racial bias in charging decisions and because women who are coerced into committing crimes by intimate partners can be charged under the doctrine.
Lawyers for several of the teens have argued that the second-degree murder charge and its attendant penalties constitute a violation of their clients’ Eighth Amendment right to be free from cruel and unusual punishment, given
‘Subjecting an unarmed child whose only role was to get into a car and get out of that car 12 seconds later to a life sentence with the possibility of parole is an unconstitutional deprivation of that child’s rights, and should be ruled as such,” a lawyer for Curtis wrote.
But those motions were denied by Judge Kimya Holmes, who will preside over the teens’ trial next week.
Levels of culpability
Critics of the DA’s decision to charge the kids with felony murder also point to the fact that the allegations indicate very different levels of culpability among them — particularly between Honore and the three girls — and the potential punishment should reflect that. Lawyers for the girls say that they intend to blame Honore for Frickey’s death.
Prosecutors paint a different picture, however, arguing that all the teens worked “in unison to commit, at the very least, a simple robbery of this vehicle,” and thus “all four are guilty of second-degree murder under LA R.S. 14:30.1(A)(2), also known as felony murder.”
Surveillance video from the incident that led to Frickey’s death shows four teenagers surrounding her car in mid-city. One of them — prosecutors allege it was Honore — approaches the driver side door. He is seen struggling with Frickey as he tries to pull her from her vehicle. Another of the teens gets in the passenger seat and appears to have some physical altercation with Frickey.
The other two girls get in the back seat of the car, but one of them, who prosecutors allege was Curtis, gets out before the car is driven away. As it was, Frickey became tangled in the seatbelt, and she was dragged for more than a block before her arm was severed from her body. She died in the street shortly after.
“All four defendants set up a perimeter surrounding the victim,” prosecutors wrote in a filing earlier this year. “The females acted as a lookout as they noticed the victim sitting in her vehicle. They covered their faces just before Honore approached the driver’s side door to being the robbery and, most importantly, all three female defendants chose to enter the victim’s vehicle after it was obvious and clearly visible Honore was punching and stomping the elderly victim. And none of the female victims made any attempt whatsoever to stop Honore during the robbery or call the police after it was crime [sic].”
“Given the fact that my client is not even alleged to have been inside the car when it took off and dragged Ms. Frickey, at trial, I intend to place blame for Ms. Frickey’s death on the other three individuals in the car when Ms. Frickey was actually injured,” Curtis’ lawyer, Jared Miller stated in an affidavit. “I will attempt to blame, in particular, Mr. Honore, as the individual whose actions actually caused Ms. Frickey’s death.”
“The problem is, the way they charged this case, they have Ms. Theophile on a murder charge, and solely a murder charge, and so the jury doesn’t get the opportunity to just solely judge the actions of Ms.Theophile,” Carter argued during a hearing where he argued for separate trials for his client and Honore. “She’s looped in a group with Mr. Honore also there on this murder charge.”
While defending the charging decision, Ciolino, the law professor at Loyola, also acknowledged the more limited role that the girls appeared to play in the crime.
“The guy in the driver’s seat really is the principal perpetrator and clearly warrants the most significant sanction,” Ciolino said. “I would think that the others are less culpable.”
Still, attorneys with Williams’ office say that arguments over relative culpability have no basis given the felony murder charges against the teens.
“In this case, the only question for each defendant at trial is whether or not that defendant was engaged in the perpetration or attempted perpetration of simple robbery when Linda Frickey was killed by at least one defendant,” they wrote.
Aaron Clark-Rizzio, with the Louisiana Center for Children’s Rights, said the decision to seek life-sentences for the teens is “essentially throwing them away.”
“Acknowledging that a great harm was done, and cannot be undone, a lot of the decision making in this case seems to be based on our anger, our frustration, and the notoriety of this case,” Clark-Rizzio said. “Because what we know is that all children — even children that commit the greatest amount of harm, have a tremendous capacity for change.”